Norvell C. FARLEY, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
No. 85SC490.
Supreme Court of Colorado, En Banc.
Nov. 30, 1987.
Rehearing Denied Dec. 21, 1987.
746 P.2d 956
Because rape trauma syndrome evidence has the potential to produce unreliable testimony, I do not believе a per se rule of admissibility, as endorsed by the majority, is desirable. At the same time, I believe that a per se rule of inadmissibility, as endorsed by the court of appeals, is unnecessarily stringent and may well result in the exclusion of testimony that is sufficiently reliable to satisfy the Frye test. In my view, the reasoning of the Idaho Supreme Court, regarding the creation of a per se rule in the context of hypnotiсally induced testimony, is insightful:
While each of the ... approaches discussed above have merit, they all advocate to a greater or lesser extent a per se rule of admissibility or inadmissibility which is inconsistent with the general trend of witness competency that every person is competent to be a witness. While each of the ... approaches focuses on an importаnt consideration to be evaluated by a trial court in determining competency, they do so to the exclusion of other considerations, and thus unnecessarily tie a trial court‘s hands in determining the competency of a witness to testify. If we were to adopt the rule that hypnotically induced testimony should be left to cross examination and impeachment, there would still be circumstances where testimony admitted under that rule had been rendered tainted and unreliable due to the methods used in hypnosis. Thus, a per se rule of admissibility would in some circumstances allow for the admission of unreliable testimony, an undesirable result in our judicial system, where we strive to reach verdicts based only on reliable testimony. On the other hand, a per se rule of inadmissibility ... would, in some circumstancеs, disallow reliable testimony, thus thwarting the truth seeking function of our judicial system.
State v. Iwakiri, 106 Idaho 618, 624, 682 P.2d 571, 577-78 (1984); see People v. Romero, 745 P.2d 1003 (Colo. 1987) (advocating a case-by-case approach for determining whether posthypnotic testimony is sufficiently reliable to be admissible).
Accordingly, I would reverse and order a new trial.
I am authorized to say that KIRSHBAUM, J., joins in this dissent.
David F. Vela, Colorado State Public Defender, Pamela Stross Kenney, Marilyn S. Chappell, Deputy State Public Defenders, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen., Appellate Section, Denver, for respondent.
We granted certiorari to determine whether certain opinion testimony constituted rape trauma syndrome evidence and whether it was admissible in a criminal case. We decide that such testimony was not rape trauma syndrome evidence and was admissible under
I.
The victim was approached by the defendant outside a Colorado Springs convenience store in the early morning on March 3, 1983. After several sеxually suggestive remarks by the defendant, the victim attempted to get into her car. The defendant said “I guess I have to force you” and placed an unidentified object against the victim‘s back. The defendant ordered the victim to get into the car and move over to the passenger seat or he would “blow [her] away right here.” The victim complied but tried to leave the car through the рassenger door. The defendant grabbed the victim‘s hair and poked a finger in her eyes. After further fruitless resistance by the victim, the defendant drove the car into a residential neighborhood, forcing the victim to remove her pants and underwear along the way. The defendant parked the car and sexually assaulted the victim. Afterward, the defendant told the victim that he shouldn‘t have forced himself upon her and that he wanted to take her out for lunch to make up for doing so. Although the victim was not a student at Pikes Peak Community College, she told the defendant she was and agreed to meet him there for lunch. The defendant drove back to the convenience store, parked the car and left. The victim drove home and woke up her brother. The victim and her brother drove to their mother‘s house after she told him what had happened. The police were called from the victim‘s mother‘s house and an officer met the defendant at Pikes Peak Community College later that day and arrested him.
The defendant claimed the victim had consented to sexual intercourse. At trial, during cross-examination of the victim, defense counsel implied that the victim had asked the dеfendant for help in starting her car, that she knew the defendant did not have a weapon, that she never tried to escape from the defendant and that she had consented to sexual intercourse.
The court of apрeals held that, because the testimony in question involved observations of the victim unencumbered by scientific terminology and the witness did not opine that the victim had been raped, the testimony was not rape trauma syndrome evidence. People v. Farley, 712 P.2d 1116 (Colo.App.1985). Thus, the court upheld the trial court ruling admitting the testimony. The court of appeals relied upon
II.
We agree with the decision of the court of aрpeals that the testimony in question did not constitute rape trauma syndrome evidence.1 For the most part, this testimony was limited to observations of the victim‘s demeanor. The witness did not elaborate upon the different stages indicative of rape trauma syndrome and, indeed, did not use the term “rape trauma syndrome.” While we recognize that certain testimony could easily amount to rаpe trauma syndrome evidence despite a failure to label it as such, we hold that this testimony was not rape trauma syndrome evidence. See State v. Huey, 145 Ariz. 59, 699 P.2d 1290 (1985) (psychiatrist‘s testimony regarding rape victim‘s mental state and that her mental state was consistent with the ordeal she described held admissible as general observations of stress rather than rape trauma syndrome evidence).
There was some confusion in the trial court proceedings regarding Hurst‘s testimony. At an in camera session during the trial which occurred after Hurst testified, the trial court stated that it had accepted Hurst as an expert witness. The record does not bear out the court‘s recollection. Hurst was neither offered nor accepted as an expert. At no point was the jury advised that she was an еxpert. For those reasons, we have treated Hurst as a lay witness and hold that her testimony was lay opinion testimony admissible under
The witness offered her opinion, based upon her prior experience with rape victims, that the victim‘s reactions were very consistent with being a rape victim. Under
Gallegos also involved a sexual assault and is very similar to the case now before us. In his cross-examination of the victim, the defense counsel in Gallegos brought out the fact that the victim had giggled at the preliminary hearing. From this, he implied that the victim giggled or laughed throughout the proceeding and that she
Smith [the sheriff‘s investigator] observed the victim testifying at the preliminary hearing. At trial he stated a conclusion based on his sensory impressions from the preliminary hearing in conjunction with his prior knowledge and experience. That Smith based his conclusion in part on his experience as a police officer does not render his testimony inadmissible.
Since defense counsel sought to impeach the victim‘s credibility through his questions on cross-examinatiоn, Smith‘s testimony, intended to rehabilitate her credibility, was appropriate, and did not constitute impermissible bolstering. 644 P.2d at 928 (citations omitted). See also People v. Rubanowitz, 673 P.2d 45 (Colo.App.1983) (the trial court erred in refusing to permit an attorney who represented the defendant at a previous trial to express his opinion, as a lay witness, on the question of whether the defendant suffered from an impaired mental condition at the time of his alleged commission оf the offense).
The Gallegos analysis is applicable to this case and, accordingly, the judgment of the court of appeals is affirmed.
LOHR, J., specially concurs.
ERICKSON, J., dissents, and KIRSHBAUM, J., joins in the dissent.
LOHR, Justice, specially concurring:
I agree that the testimony of Candy Hurst was properly admitted by the trial court, but my reasons for that conclusion differ from those expressed in the majority opinion. The majority holds the testimony admissible as lay opinion testimony pursuant to
The majority concludes that Hurst was never accepted as an expert, so
At the close of the prosecution‘s case, the court held, again out of the presence of the jury, that:
with regard to the bearing and attitude of a rape victim, the Court does find that the witness [Hurst] does have special experience pursuant to the requirement of the Colorado Rules of Evidence and did accept that witness as an expert and specifically overruled the defendant‘s objection.
At the close of the defendant‘s case, the court restated its holding in chambers:
the Court has further specifically found that with regard to the expertise as to demeanоr of a rape victim that the wit-
nesses’ [sic] testimony was acceptable as an expert because she testified that she counselled some thirty victims and therefore under the Colorado Rules of Evidence did have special experience and expertise and the testimony was properly admitted as expert testimony.
This court has stated that the determination of whether a witness qualifies as an expert is committed to the discretion of the trial court, and will not be disturbed on review unless that discretion has been abused. People v. District Court, 647 P.2d 1206, 1209 (Colo.1982). Accord White v. People, 175 Colo. 119, 123, 486 P.2d 4, 6 (1971); Bridges v. Lintz, 140 Colo. 582, 586, 346 P.2d 571, 573 (1959). On the basis of Hurst‘s testimony about her experience and training the court did not abuse its discretion. The fact that the trial court ruled on Hurst‘s qualifications as an expert out of the hearing of the jury did not prejudice the defendant. The substance of Hurst‘s testimony was properly limited to the scope of her expertise, which was the “demeanor” or “bearing and attitude” of a rape victim, and provided evidence that could have assisted the jury in evaluating the victim‘s behavior following the assault.
ERICKSON, Justice, dissenting:
I respectfully dissent. In my view, the testimony of the counselor, that the victim‘s behavior was consistent with that of a rape victim, was “rape trаuma syndrome” evidence and was inadmissible. The trial court neither qualified the counselor as an expert on the rape trauma syndrome nor determined whether the counselor‘s rape trauma syndrome testimony was admissible under Frye v. United States, 293 F. 1013 (D.C.Cir.1923).
The majority concludes that the counselor‘s testimony is not rape trauma syndrome evidence because it was limited to observations of the victim‘s demеanor and because the witness did not use the term “rape trauma syndrome” or elaborate upon the syndrome‘s different stages. In my view, the distinction elevates form over substance. The failure to use the phrase “rape trauma syndrome” should not permit lay witnesses to describe the typical symptoms of the rape trauma syndrome and to testify that the victim displays those symptoms.
“Raрe trauma syndrome” refers to a recurring pattern of emotional distress in rape victims, which is manifested by certain identifiable symptoms. People v. Hampton, 746 P.2d 947 (Colo.1987). In the context of a rape trial, evidence that the victim is suffering from the symptoms constituting the rape trauma syndrome is used to prove that a rape occurred. See People v. Hampton, at 949 (admitted expert testimony identifying symptoms of the rape trauma syndrome and testimony of witnesses that victim suffered from the symptoms to prove that the victim was raped). In this case, Candy Hurst, a counselor in the Victim Services Unit of the Colorado Springs Police Department, identified the stages of emotional adjustment after a traumatic experience and testified, based on her training and interviews of some thirty other rape victims, that the victim had symptoms “consistent with bеing a rape victim.” The testimony was offered to prove that the victim was raped and did not consent to sexual intercourse with the defendant. Because the counselor‘s testimony identified typical symptoms of the rape trauma syndrome to prove that the victim was raped, I find the conclusion unavoidable that the counselor‘s testimony was rape trauma syndrome evidenсe.
After concluding that the counselor‘s testimony was not rape trauma syndrome evidence, the majority concludes that the counselor‘s testimony was admissible under People v. Gallegos, 644 P.2d 920 (Colo. 1982). In Gallegos, the sexual assault victim giggled on the witness stand at the preliminary hearing. At trial, the defendant commented that the victim had laughed and giggled throughout the hearing and considered it a “big joke.” To rebut the defendant‘s implication, the рrosecution presented testimony of a police investigator that the victim had giggled because she was nervous. In Gallegos, we held that the admission of the testimony did not constitute plain error because a witness, who has personally observed the physical activi-
Gallegos, however, is factually distinguishable from Farley. In Gallegos, the officer did not require specialized knowledge of the symptoms displayed by rape victims to form his opinion. Any lay witness who had observed the victim‘s physical behavior at the preliminary hearing could have concluded that the victim had giggled because she was nervous. In contrast, the counselor in Farley based her conclusion upon her knowledge of the rape trauma syndrome. She testified to the several stages of emotional adjustment madе by a rape victim following a sexual assault. Based upon her experience with rape victims, the victim‘s physical actions, and the answers to her questions, Hurst identified symptoms in the victim typically possessed by rape victims and opined that the victim‘s behavior was consistent with that of other rape victims.
In my view, the prejudicial effects of admitting rape trauma syndrome evidence under the facts of this case mandate reversal. Although she had had some past contacts with rape victims, Ms. Hurst was never qualified as an expert in the area of rape trauma syndrome. There was also no showing that the premises of the counselor‘s conclusions were admissible under the Frye test. People v. Hampton, 746 P.2d 947 (Colo.1987) (Erickson, J., dissenting); see State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984) (error to admit testimony of physician, who was not qualified as expert in area of rapе trauma syndrome, that victim‘s emotional state was consistent with one of the three categories of typical rape victims and that the victim had been raped); State v. Whitman, 16 Ohio App.3d 246, 475 N.E.2d 486 (1984) (error to admit testimony of social worker, who was not qualified as expert in context of rape trauma syndrome, that victim suffered from symptoms of rape trauma syndrome). I, therefore, believe that Hurst‘s testimony was improperly admitted by the trial court.
The majority‘s broad interpretation of Gallegos and its holding in Farley will allow lay witnesses to testify to matters requiring specialized knowledge without being qualified as experts. In my view, the court of appeals decision should be reversed and the case remanded for a new trial.
I am authorized to say that Justice KIRSHBAUM joins in this dissent.
MULLARKEY
Justice
George W. PIGG, Plaintiff-Appellee, v. STATE DEPARTMENT OF HIGHWAYS, State of Colorado; State Highway Commission of Colorado and Josеph A. Fortino, King H. Harris, Grant Wilkins, Charles Hanavan, George D. Alderman, C.W. Brennan, James Golden, Bill E. Roundtree and Richard J. Albrecht, in their official capacities as State Highway Commissioners, and Robert L. Clevenger, in his official capacity as Chief Engineer, State Division of Highways, Defendants-Appellants.
No. 86SA4.
Supreme Court of Colorado.
Nov. 30, 1987.
Rehearing Denied Dec. 21, 1987.